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So Rob is no longer at death’s door. The press are still camped out in Ambridge. Tom Archer assaulted and then sacked Jazzer after overhearing him say some really unpleasant things about his sister Helen Titchener (nee Archer) who is in custody charged with the attempted murder of her husband Rob Titchener.

Does justice have to be seen to be done?

Our system of open justice has much to be commended. It guards against miscarriages of justice and reflects our shared sense of responsibility as citizens. Naming and shaming can be an effective deterrent. The down side of that very precious principle is that the families of those involved at the wrong end of the criminal justice system can sometimes bear the brunt of adverse publicity. The concern regarding journalists camped out in the various nooks and crannies of Ambridge, the sensationalist nature of the subsequent reporting and in particular the need to protect Henry from adverse publicity are experiences common to communities, families and friends in situations such as this. So what are the rules?

Regarding Henry

Section 45 of the Youth Justice and Criminal Evidence Act 1999 (YJCEA 1999) provides the court with discretionary power to restrict reporting concerning the identity of victims, witnesses and defendants under the age of 18 who appear in Magistrates' courts and the Crown Court. The power can be used to protect Henry and could in fact prevent reporting concerning Rob’s identity as way of protecting his son Henry. This is something that perhaps should have been canvassed at Helen’s first hearing in the Magistrates court.

What about Rob?

On the application of any party to the proceedings, most likely in this case by the crown, the court can make an order under Section 46 of the Youth Justice and Criminal Evidence Act 1999 which gives the court power to restrict reporting about certain adult witnesses (other than the accused) in criminal proceedings.

Helen the defendant

Even if the powers above are used they will, for practical purposes, be undermined by the fact that, save where the defendant is under 18 (where section 49 of the Children & Young Person’s Act 1933 restricts reporting), our system of open justice makes it almost inevitable that Helen’s image and details will be reported and so in practice Henry cannot be completely protected.

“Cannot be named for legal reasons”

By the way, section 49 of the Children & Young Person’s Act 1933 provides presumptive automatic restrictions on reporting that reveals the name, address or school of any child or young person concerned in the proceedings. This encompasses any particulars likely to lead to the identification of any child or young person concerned in the proceedings including pictures. It applies whether the young person is a defendant or a witness. This is the section that usually results in the papers describing “A youth who cannot be named for legal reasons was charged with….”.

Whenever the court considers a reporting restriction it will seek to balance the interests of justice and the public interest in avoiding the imposition of a substantial and unreasonable restriction on the reporting of proceedings.

A useful guide to the powers the courts can exercise or what Tom Archer referred to as “sub judice” can be found here Reporting Restrictions in the Criminal Courts .

Helen’s prospective barrister asked Kirsty to leave the initial conference with Pat Archer because Kirsty was a prosecution witness. This is a tricky area of judgement for every defence solicitor. Kirsty is the person most likely to be able to assist the defence given her intimate knowledge of the relationship between Rob and Helen. Why can’t Kirsty help the defence? Is that fair? How will the defence understand the nature and strength of Helen’s defence without her?

In reality witnesses do not “belong” to the prosecution or the defence. The witness’s sole role is to assist the court in coming to a decision about the facts of a case. They may be “called” by one side or the other but in giving their evidence they promise to tell “the truth, the whole truth and nothing but the truth”. There is a case about this issue here if you want to know more.

Fortunately for the prosecution, their access to witnesses called by the defence is set out in statute (under s6C of the Criminal Procedure and Investigations Act 1996, section 6C; Criminal Procedure and Investigations Act 1996 (Defence Disclosure Time Limits) Regulations 2011; Criminal Procedure Rules, rule 22.4). The defence have to inform the prosecution of the name, date of birth and contact details of “defence” witnesses. Failure to do so may mean that witness cannot give evidence. It is then open to the prosecution to contact and interview defence witnesses at their leisure. There is no reciprocal arrangement for the defence to have access to prosecution witnesses. In a system that is intended to be fair to the defence and prosecution you may wonder why that is the case.

Consequently it is unusual for defence solicitors to go anywhere near a “prosecution” witness who was previously unconnected to the defence. However witnesses such as Kirsty who are “prosecution” witnesses purely because the prosecution got to them first require more careful consideration.

A robust defence solicitor will:

Not have the prosecution witness in a conference with the family (that’s the only point on which I agree with the barrister Anna)

Let the prosecution know that they intend to speak to the witness

Advise the witness that they have a choice about speaking to the defence

Advise the witness to seek independent legal advice about whether they are willing to assist the defence

Invite the witness to make a further statement or take an account of the information they may be able to provide

Anything less will leave Helen’s defence significantly disadvantaged.

Funding Helen’s defence

Helen’s solicitor mentioned the availability of legal aid to fund Helen’s defence. Any serious discussion of that topic will double the length of this blog so I will deal with it in more detail if it comes up again. Suffice to say that while Helen may be “eligible” for legal aid because the alleged offence is so serious, the complexity of the application forms, the common place delay in granting it and the restrictions to the scope of the funding, in reality create a perfect storm that accounts for the significant increase in people representing themselves in the criminal courts. Let’s hope Helen does not have to resort to that.

Understatement of the week

Goes to Jazzer who in described the indefensible comments he made about Helen being somewhat unstable (in the hearing of her brother) as “just a bit of banter”. Shame on you Jazzer.

Compare jurisdictions: Merger Control

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